How does the court divide debt in a divorce?
When you get a divorce, the court will expect you to divide everything in your marriage between the two of you. Everything includes all property, assets and liabilities.
The Illinois General Assembly explains the law sees debt as any other type of property. For this reason, debt division occurs in the same way as property division.
Illinois uses equitable distribution to divide marital property. Equitable means fair, but it does not mean 50/50. The court will base division on fairness based on a range of different factors about you, your spouse and the details of your marriage and divorce.
Marital and separate property
You will need to look at debts as either marital or separate. Marital property is that which the court will divide. It includes everything you and your spouse obtained during the marriage. The home you bought is a marital asset, so the mortgage is a marital debt subject to division.
On the other hand, separate property is that which you obtained prior to the marriage or in certain circumstances acquired while married. For example, student loans from college may be a separate debt the court will assign only to the person who obtained it.
You may have a premarital agreement that will change the general rules about property and debt division. As long as the agreement meets the legal requirements, the court will usually follow what it says. So, if you have made an arrangement outside of the typical legal guidelines in a premarital agreement, then you will need to follow that agreement when it comes to dividing debt.
Debts are something you will generally share in most cases when you divorce